Fort Worth daily gazette. (Fort Worth, Tex.) 1882-1891, 1887-11-13

matters. Time Is generally not consid
cred SO forming part OF the msteria
issue, so that one time msy be alleged
and another proven. II the injury va
inflicted il matters not on Whist par
ticular day, or by what particular trair
the same was Inflicted. The remarks OF
counsel for sppellee having been pro
voked by previous remarks OF counse
for appellant, the appellant cannot be
heard to complain; no reversible erro:
Affirmed. Wilson, J.
s.. Louis, Iron Mountain and Southern
Railway Company vs.. Henderson Ell
wards; appeal from Bowie. In the csse
decided above appellee sued for end re-
covered damages for injuries done &C
hims III. In this suit he cues for damages
sustained by his wife, which injuries
were received at the same time and by
the same cause. In the court below sp.
pellant interposed plea OF res sdjudicats
in bar Of this suit, based upon the judg
ment recovered IN the other suit by ap-
pellee. In his charge to the jury the
court in effect charged the jury to fad
against said plea. This is
assigned as error. Held: The
charge was a correct exposition Of the
! Law. We are of the opinion that appellee
had his election to bring separate suits,
or TO bring but one suit. II the court IN
which these cases were tried had juris-
dicti0n Of the aggregate amounu, they
might have properly been consolidated.
| This, however, was not the case. The
other q lestions in this case have been de-
cided III the case above. Affirmed. Will
son, J.
ST. l.. M. & S. R R. Co. VS.. Elias
Jsckson-by his rext friend-appeal from
Bowie. This case rests substantially
upon tie same grounds of Appellant vs.
Edwards decided above. Appellant con-
tends that appellee being minor with
out guardian in the state, ii being
shown that he had mother aud 8 step
father in the state OF Arkansas, could not
sue and recover by his next friend. Held
| II is Well settled that minor without a
| guardian in this state csn sue by his mex
| friend, aud the fact that he had guar
dian in another state would not deprive
him Of this right. Affirmed. Wilson, ].
Martin Guest vs.. the State; appeal
! from Red River. 'Ia order to cOnViCs
the defendant Of the crime charged in the
bill Of Indictment, you must be satisfied
! beyond a reasonable doubt that he not
only did appropriate Of j. +. johnson as
alleged in the bill of Indictment, but that
| the intent of the defendant to deprive
the owner of the value thereof (tf you
| should fad that such intent eXisCeQ) eX-
| listed ST or before the taking; and in this
connection further charge you that il
! YOU should find from the evidence that
the cattle alleged to have been stolen fol-
| lowed defendant and got into his herd,
and thst sitter wards he formed the idea OF
iraudrlently eppropriating the s&me to
| his own use and benef., he could not be
| convicted of theft" This charge YVES
asked by defendant and refused by the
court, and s&id refusa! is assigned IS er-
rof. Held: The assignment Of error is
we'll tzker. Tlere was 10 similar In
etruction embraced in the charge. TIE
| felOniou5 intent is the essential ingredi-
eut Of the crime, and to constitute
theft the taking OF the property
must in thesfrst instanc9 have been fraud
u.e1t, and Il the possession be attained
la@fultY, no subsequent appropriation,
however fraudulent The intent Will suffice
to constitute the taking theft, unless
such laTfIl possession WAS obtained By
means Of false preteX5 or with the frau
dulent intent at the very time OF the tax
ing, 10 deprive the owner OF the value OF
the property, and to appropriate the same
TO the -nedt and use Of the taker. 20
c. A. l51-17 G a. 34-I9C C. A. 40I-14
@. A. 66S | Reversed and remanded.
White, P. j.
St. Louis, Iron Mountain and Southern
Railway Company vs.. l. n. Anderson ;
appeal from Upshur. Suit for damages,
conversion OF wood by appellant company
and the vglue Of six hogs killed by said
appellant company. Judgment for appel
lee for S193 %. It was shown that four
of the SIX nogs, valued at $3.50 were
killed within the sf5witch limits over which
ran public road, Gb public place.
Also that plaintiff failed to show that de-
PENDANT did not use ordinary care in
moving It's cars at the time Of the killing
of said hogs killed within the "switch
limits" Held: If these hogs were
killed at public road crossing snd with
in switch limits, then the defendant COM
p2ny would not be liable, unless il was
shown that the In jury was caused by neg
ligeDCe. The judgment for the value of
the hogs so killed YVES erroneous. For
this error the judgment will be reversed,
and is here rendered in favor Of Ander-
son sgsinst the railroad company for
$751; rs Reversed and rendered for ap-
pellee. White, 2. J.
John Buchanan vs.. the State; appeal
from Kaufman. It has been held by this
court that an Indictment alleging neither
daytime or nighttime, will support 8
conviction for burglary, either in the day
time or nighttime, if the proof shows that
the force used in the preparation CT the
burglary was applied to the building.
Farther held: It was unnecessary to
prove that the house was entered with
out the consent OF the owner or occupant
thereof, or any person authorized to give
such consent. It was not error in the
court to refuse the special charge TO the
effsct that if they found the house was
not in the possession Of Shrader, the
owner, but in the possession of Peed they
would acquit, because II is shown that
Peed was in only temporary possession,
Shrader having gone fishing at the time
OF the burglary. No error. Affirmed.
Wilson, j.
Dave McCleveland vs.. the State; APP
peal from Smith. Conviction for assault
TO rape. Verdict of guilty and sentence
for two Years. Appellant made supple
mental motion for u new trial On
the ground OF newly discovered evidence.
The newly discovered evidence Was in
substance as follows: The sff1 iaVit Of
the Esther OF the prosecutrix, to the effect
that he WAS mistaken in the date CT the
offense; that he swore on the trial that
thst the said offense vas committed On
the second Sunday ia July, 1887, but that